Human Rights Lexicon: ‘Foreign Law’ in Constitutional Adjudication

In this fifth contribution to today’s Human Rights Lexicon, Dr Fiona de Londras—a regular contributor here at HRinI—considers the role that comparative and international human rights law can play in domestic rights protections.

Using international and comparative law in human rights litigation and scholarship often results in a hostile or at the least sceptical response. After all, the typical respondent to such a suggestion will say, we have a constitution with a bill of rights and an independent judiciary; what do we need to use other law for? Thankfully in Ireland this response is not that prevalent; it is certainly less prevalent here than in other jurisdictions. However, there remains some scepticism about the extent to which comparative and international law can be useful and, indeed, some concerns that using these sources of law in our domestic rights protection can undermine our sovereignty. In this contribution to the human rights lexicon I want to take on these claims by considering the contribution that international and comparative law can play in developing constitutional understandings of rights and arguing that using these sources of law in constitutional development is appropriate and helpful.

The term ‘foreign law’ can be said to encapsulate both comparative and international law that does not have the force of domestic law (i.e. unincorporated international law). By comparative law we simply mean the law of other jurisdictions. In the context of constitutional law, we might say that other jurisdictions whose constitutional structures are analogous to our own and whose legal systems have perhaps particularly important parallels with ours are especially rich sources of comparative law and might offer some guidance on questions of controversy with which our domestic courts are grappling. By international law we mean the law of international institutions such as the Council of Europe, the EU/EC, the United Nations etc. International law might either be incorporated (through an Act of the Oireachtas), incorporated by the constitution (i.e. classed as general principles of international law), or unincorporated (i.e. neither expressly incorporated nor general principles of international law having domestic effect). The first two of these classifications of international law are, in essence, domestic by means of their incorporation. In other words, they have the domestic force of law. The latter classification is the one with which we are most concerned in this post, for it is law emanating from an international jurisdiction which is not binding on the state in the domestic sphere, even though it may be binding in international law as the state might have signed and ratified the relevant treaty. To say that incorporated international law can have a useful impact on domestic litigation is (or ought to be) an uncontroversial proposition as it has been given the force of domestic justiciability. To say, on the other hand, that we ought to look to unincorporated international law to help us in resolving rights controversies in Irish courts is certainly more controversial. That controversy should, however, be ameliorated by recognition that (a) its force is that of persuasive authority only; (b) it has the same constitutionalist concern as domestic rights protecting law, i.e. a concern with limiting state power; and (c) it may offer guidance on rights conflicts that our domestic law has not yet dealt with.

The first of these points—that foreign law is seen here as a source of persuasive authority only—is particularly important. In my view the greatest degree of hostility to international and comparative law in constitutional litigation tends to arise when debates are centred on questions of which body of law is ‘superior’ or ‘inferior’. Such discourse is entirely unhelpful and misses the point of the intended and optimal relationship between international and domestic human rights law in particular. In an article forthcoming in the International Review of Constitutionalism (the non-typeset version of which you can download here) I argue that “it is abundantly clear that international human rights law’s preference is for effective protection to take place on the domestic level—international adjudicatory bodies are intended and designed to play a supplementary and complementary role”. In this respect, I say, it most helpful to see international human rights and domestic constitutional law standards as synergistic with international human rights law offering “an interlocutor with which domestic human rights (or ‘civil liberties’) law can converse towards an advantageous outcome”. Although that article has as its focus the relationship between international law and US constitutional law, this principle of synergy is, I think, generalisable beyond that specific context.

In my view ‘foreign law’ is most helpful in constitutional litigation when our courts are faced with questions that have not previously been considered and where our constitution does not appear to have contemplated such questions. This is closely linked to my view that constitutions are not static; rather they must develop to help our courts and organs of governance to resolve conflicts and controversies arising in contemporary society. This is firmly rooted in my belief that a constitution must remain fit for purpose, and that this requires at least some dynamic or evolutive interpretation. It is, perhaps, trite to observe that there are some issues now arising before our courts to which the framers of the constitution can not reasonably be said to have turned their minds; immediately apparent examples include the use of reproductive technologies, diversity of family forms, and transnational organised crime. One of the primary roles of apex courts in a constitutional system such as Ireland’s is interpreting the constitutional rights and limitations that apply in relation to such matters and in doing so it does not appear logical, to me, for us to close ourselves off from the examples of other jurisdictions or sources of law.

This does not mean that in every case we ought to adopt the views or approaches of unincorporated international law or of other jurisdictions; to do so may not always be appropriate and deciding on the appropriateness of same in any given situation is rightly within the purview of the judiciary. However, it does mean that in my view we ought to be open to taking on board the approaches of those other legal systems. Doing so can help us to invigorate our constitutional standards and keep them fit for purpose and capable of resolving difficult and complex contemporary controversies. We are not adverse to doing this in this jurisdiction, especially in contexts where a parallelism in structure and legal philosophy in relation to the right in question can be identified. Thus, for example, the right to free expression in the Irish constitution has been greatly revived and invigorated by its development through consideration of European Convention on Human Rights jurisprudence under Art.10 of that covenant. This was the case even before the Convention was transposed through the ECHR Act 2003.

The objection that is sometimes made, however (although moreso in other jurisdictions), is that this somehow undermines the domestic legal system. In my view this is a gross misstatement. What would undermine the domestic legal system would be a refusal to take on board the experience of other jurisdictions dealing with broadly analogous controversies and difficulties in order to guide us in developing our constitutional standards. For a domestic superior court to decide that ‘foreign law’ can offer a useful exemplar in developing domestic constitutional standards is for that court to ensure the continued relevance of those domestic standards. To do otherwise is to risk bringing about stasis and a disconnect in constitutional rights protections to the detriment of effective rights protection on the domestic plane.

I think, in fairness to the Irish Supreme Court, that it has traditionally embraced “foreign” law when interpreting our Constitution, for example the devlopment of unenumerated rights as a direct reposnse to American Constituional Law developments.. I do find the traditional hostility of the American Supreme Court to the citation of persuasive foreign authority as remarkable. Although this seems to be softening, it is remarkably insular.

Fiona, as regards the substantive point regarding the recognition of unincorporated international law, do you think we’re moving towards a kind of transnational or supranational constituionalism in human rights? I know I’d probably get my head taken off for saying this in an American law school, but is it a “pipe-dream” to envisage that we may have strong enough supranational institutions in the next hundred or so years, that could effectively enforce human rights norms against private individuals; or do you think that the enforcement methods will remain tied to domestic courts, albeit ones which are increasingly conscious of a common body of human rights documents which have a kind of quasi-constituinal status?

Neil, thanks for your comment. I do actually think we’re moving towards international constitutionalism. In fact, I think the idea of limited powers, rights enforcement, and legitimacy are so proiminent in the literature and the thinking in IR, poli sci and int law that the movement may have already arrived and now the structure is to be moulded. But I don’t think that we necessarily need strong supranational or international institutions to be the only adjudicative actors for this to work. In fact, I think domestic courts can make an enormous contribution to shaping international law and that the constitutionalist process occurs at the domestic, regional and international level. We have a superb example of this in Europe with the interactions of domestic courts, ECtHR and ECJ/CFI and increasingly I think Europe (broadly composed of these three) is making an ever greater contribution to the international/global movement (or moment?).

Agreed re the Irish Supreme Court broadly speaking. I am not sure it’s as internationalist as it could be (have described it elsewhere as ‘a la carte internationalist’) and in fact the US Supreme Court is not as hostile to international law per se in general terms as people think but in relation to human rights law there is clear hostility. The US insularity is worrying but I think it’s very much bound up in legal culture. In my experience, the failure to internationalise the law school curriculum in the United States–and that fact that international law is frequently taught from a particular (usually anti-internationalist) ideological position–is a major obstacle. At the risk of self-publicising I consider these themes here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1393293

Without applying the damp squib, methinks a reading of Horgan V. An Taoiseach etc would not give rise to any hope of a deeper appreciation of customary international law. Indeed, Kearns J. was quite precise in stating that such law came right down the last rung on our legal ladder. He was quite open in stating that the Irish State breached international law in providing assistance for a belligerent, in the absence of a UN resolution, and quite simply went on to say, effectively, well, so what. I appreciate it was not appealed to the Supreme Court, but gives a very good flavor methinks.

Gavincus, I don’t think we can make general statements from Horgan. I think rather that it backs up my view that we are very a la carte in the way that we approach international and comparative norms. I am not an expert on Horgan in any way, but Aoife O’Donoghue who also contributes to the blog has written on it in the DULJ and may have some thoughts on your comment